23 June 2011

Copyleft Ambiguities

Copyleft licences are intended to be 'free' although it is unclear what that means. To me, the word 'free' means nothing more than that 'contractually permitted use of a work does not require the payment of licence fees/royalties'. However, the word 'free' can be used to refer to both use and payment. In this post, I've focussed on why I choose to use 'free' to refer to payment alone even though I relate to its employment with reference to the use of a work, and I later refer to other copyleft ambiguities. (This post has been written in the first person to emphasize that it is a personal opinion -- there are good arguments on both sides of the issue.)

I am extremely apprehensive about using the word 'free' to refer to both payment and use because I would find it impossible to definitively interpret a contract which allowed 'free use', simply because I don't believe it would be possible to be absolutely certain of what the licensor intended to allow, especially in the case of standard form contracts.

I dislike terms which are open to interpretation, and, to my mind, even this relatively narrow definition which states that 'free' means nothing more than that 'contractually permitted use of a work does not require the payment of licence fees/royalties' may be too broad to be accurate. The Creative Commons 3.0 generic licences, for example, specifically allow authors to collect statutorily non-waivable payments due to them, even though the licences are intended to allow use which is free of payment.

That being said, I also sympathise with having the word 'free' refer to both use and payment. Nonetheless, if use were indeed intended to be free, my own opinion is that it would be safer to state that all the exclusive rights of a copyright owner under Section 14 of the Copyright Act, 1957, had been licensed. (Of course, I may be prejudiced by having had to spend a great deal of time trying to interpret virtually incomprehensible copyright contracts).

To my mind, the copyleft movement may have done itself a disservice by using terminology which is extremely unclear. The debate regarding the use of the word 'free' is not the only ambiguity in the move towards creating a culture which espouses a more liberal interpretation of copyright.

The Free Culture logo is, according to the FC website, “usually added to an intellectual work (or collection) to indicate to potential recipients that it has been produced or provided by one or more free culturalists (adherents of free culture)”. The site goes on to say that the copyright in the work maybe neutralized by license such as a Creative Commons license, although the use of the logo does not require this. The FC website, however, does not appear to be linked to Larry Lessig’s “Free Culture”, although it shares the same name.

Unfortunately, the text on the Free Culture logo website indicates that the use of the Free Culture logo in itself does not mean much. This is because, under the law, a copyrightable work is automatically protected by copyright from the moment of its creation. Therefore, for recipients of the work to be able to exploit it in any manner they choose, they must obtain a license from the owner of the copyright in the work unless copyright law specifically allows the use they intend to exercise via the fair use doctrine or otherwise.Some persons who use the Free Culture logo choose not to append a suitable license because they refuse to recognize the copyright system itself. However, the law does not allow individuals to choose whether or not they would like to recognize it. Even those who choose not to recognize the copyright system have their works automatically protected by copyright upon creation.

In addition to this, the meaning of the Free Culture logo itself appears to be fluid. The website on which it is available states:

“These are a few of the assurances that can be made by free culturalists concerning this and any other intellectual work to which this logo is attached:

No litigation will ever be initiated by a free culturalist against any individual for an act of copyright infringement concerning this work, any derivatives, or any works it derives from.

Any copyright a free culturalist holds to this work will not be voluntarily assigned or transferred to any other individual or organisation that is not also an adherent of free culture.

All elements of this work are implicitly attributed to their respective authors, and if explicit attribution is provided it may vary in level of detail (and provenance). Any unwitting explicit or implicit misattribution will be remedied as far as is practicable, and as soon as possible upon notice.

No use is knowingly made of work obtained through unauthorised access.”

It is pertinent to note that the website states that the assurances listed are only of view of the assurances which can be made – as such, presumably, they are not assurances which are always made. This leaves potential users of works marked with a Free Culture logo in something of a quandary. The logo itself merely seems to indicate that the copyright owner believes in a free culture but it does not appear to specifically allow potential users to freely use works marked with the logo.

As far as contracts are concerned though, the lack of clear definitions, to my mind, makes it impossible to know which rights, if any, have been granted. This not only involves cases where words are, without doubt, used in a number of different senses, as in the case of the word 'free', 'non-commercial use', for example. Would the sale of a work licensed for non-commercial purposes be permitted if (a) the sale was not-for-profit and/or (b) the sale was by a non-profit organisation? Alternatively, would such sale constitute a breach of contract resulting in actionable infringement?

In attempting to ensure that contracts veer far away from traditional copyright licences, and are human-readable (as opposed to being lawyer-readable), it is possible that they have simply created much avoidable ambiguity. And the lack of clarity regarding which rights have been licensed cannot help but devalue the licences themselves.

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